MASON AND OTHERS v. FOX, STEVENSON & THORPE

COURT OF KING'S BENCH, 1621

Cro. Jac. 632

Ejectment in the common pleas of a lease of Robert Tyrwhyt; and judgment being given for the plaintiff upon a verdict, error was thereof brought and assigned, because the judgment was, quod recuperet versus Franciscum Stephenson possession of a messuage, sixty acres of land, fifteen acres of meadow, and fifteen acres of pasture; whereas the verdict was entered, that he was found guilty of the ejectment of a messuage, ten acres of meadow, and thirteen acres of pasture, and for the residue not guilty; so as there is not any land in the verdict, and a lesser quantity of meadow and pasture than is in the judgment. And it was moved that it was amendable; for it is the misprision of the clerk, who ought to have entered the judgment according to the verdict, and the paper copy for entering the judgment was right enough; so that the mis-enterings of it upon the roll was amendable by the statute of 8 Hen. 6, ch. 12. But it was objected to that it was not amendable; for being in point of judgment, it is always imputed to be the act and error of the court, and not merely the default of the clerk: as where a capiatur is entered for a misericordia, or a Concessum est per Curiam where it should have been a consideratum est, etc., it hath been adjudged to be error, and

Ala. 257, 3 So. 30 (1886); Knox v. Moser, 72 Iowa 154, 33 N. W. 617 (1887); Stannard v. Hubbel, 123 N. Y. 520, 25 N. É. 1084 (1890); Crew v. McCafferty, 124 Pa. St. 200, 16 Atl. 743, 10 Am. St. 578 (1889); Egan v. Egan, 90 Cal. 15, 27 Pac. 22 (1891); Radclyffe v. Barton, 154 Mass. 157, 28 N. E. 148 (1891); McKay v. Dennington, 82 Hun 509, 31 N. Y. S. 716, 64 N. Y. St. 394 (1894); Hicklin v. Marco, 64 Fed. 609 (1894); Cleveland Leader Printing Co. v. Green, 52 Ohio St. 487, 40 N. E. 201, 49 Am. St. 725 (1895); Heath v. New York Bldg. &c. Bank. Co., 146 N. Y. 260, 40 N. E. 770 (1895); Griffith v. Maxwell, 19 Wash. 614, 54 Pac. 35 (1898); May v. Stimson Lumber Co., 119 N. Car. 96, 25 S. E. 721 (1896); State v. Donovan, 10 N. Dak. 203, 86 N. W. 709 (1901); Chicago &c. R. Co. v. State, 159 Ind. 237, 64 N. E. 860 (1902); Rice v. Donald, 97 Md. 396, 55 Atl. 620 (1903); Goldreyer v. Cronan, 76 Conn. 113, 55 Atl. 594 (1903); Dunscomb v. Poole, 41 Misc. 335, 84 N. Y. S. 749 (1903); Pisa v. Rezek, 206 Ill. 344, 69 N. E. 67 (1903); Day v. Mountin, 89 Minn. 297, 94 N. W. 887 (1903); McInnes v. Sutton, 35 Wash. 384, 77 Pac. 736 (1904); Camplin v. Jackson, 34 Colo. 447, 83 Pac. 1017 (1905); Smith v. Smith, 121 App. Div. 480, 106 N. Y. S. 137 (1907); Olson v. Mattison, 16 N. Dak. 231, 112 N. W. 994 (1907); Laugesen v. Sanford, 135 Wis. 252, 115 N. W. 808 (1908); Story Mercantile Co. v. McClellan, 145 Ala. 629, 40 So. 123 (1906); Boardman v. Hesseltine, 200 Mass. 495, 86 N. E. 931 (1909); Forrester v. Lawler, 14 Cal. App. 171, 111 Pac. 284 (1910); Heinitz v. Darmstadt, 140 App. Div. 252, 125 N. Y. S. 109 (1910); Silliman v. Silliman, 66 Ore. 402. 133 Pac. 769 (1913); Juster v. Court of Honor, 120 Minn. 325, 139 N. W. 701 (1913). Compare Ehrhart's Estate, 31 Pa. Super. Ct. 120 (1906), and see Lewis v. Linton, 24 Pa. C. Ct. 188 (1900); Pritchard v. Mines, 56 Ind. App. 671, 106 N. E. 411 (1914). So also, a court of equity will not interfere with a judgment at law merely because it is erroneous. Jacobs v. Morange, 47 N. Y. 57 (1871); Cross v. Gall, 65 W. Va. 276, 64 S. E. 533 (1909); West Chicago Park Comm. v. Riddle, 151 Ill. App. 487 (1909).

"S. C. Anonymous, W. Jones, 9. Part of the case is omitted.

MASON V. FOX

539 not amendable. And thereupon it was much debated whether it might be amendable.

All the justices of the King's Bench and Barons of the Exchequer were assembled to consider thereof; and they all agreed and resolved (except Tanfield, Chief Baron, who doubted thereof, upon divers precedents shown to them), that it was amendable, and not like to the cases put; for the entry of a capiatur instead of a misericordia is an error in point of law,70 and can not be imputed to the default of the clerk, the clerk having nothing to induce him either ways; but here the verdict is the guide to the judgment, and the court direct the judgment to be entered according to that verdict; for the judgment is but the consequent of the verdict, and when the verdict is before the clerk to enter his judgment, it is but his misprision that he did not enter it according to the verdict, especially here, when the entry of the judgment in the paper is according to the verdict, and the entry on the roll is in another manner and disagreeing from the verdict, and so a mere misprision of the clerk, and no default in the court; wherefore it is amendable."1

See 3 Bl. Comm. 398. By the statute of jeofails, 16 & 17 Car. II, ch. 8, a capiatur for a misericordia was made amendable after verdict. Anonymous, 3 Mod. 112 (1686).

"Accord: Grenvile v. Smith, Cro. Jac. 628 (1621); Aylesworth v. Chadwell, Cro. Car. 38 (1626); Anonymous, 1 Vent. 132 (1671); Cradock v. Radford, 4 Mod. 371 (1694); Verelst v. Rafael, Cowp. 425 (1776); Doe v. Perkins, 3 T. R. 749 (1790); Dunbar v. Hitchcock, 3 M. & S. 591 (1815). "There can be no doubt that it is competent for a court of record, under its general, inherent and necessary authority, to correct the mistakes and supply the defects of its clerk or recording officer, so as to have the record conform to the actual facts and truth of the case, and that this may be done at any time as well after as during the term nunc pro tunc." Balch v. Shaw, 61 Mass. 282 (1851). Accord: Close v. Gillespey, 3 Johns. (N. Y.) 526 (1808); Waldo v. Spencer, 4 Conn. 71 (1821); Chichester v. Cande, 3 Cow. (N. Y.) 39, 15 Am. Dec. 238 (1824) ;Chamberlain v. Crane, 4 N. H. 115 (1827); Hall v. Williams, 10 Maine 278 (1833); Hunt v. Allen, 22 N. J. L. 533 (1850); Fay v. Wenzell, 62 Mass. 315 (1851); Lewis v. Ross, 37 Maine 230, 59 Am. Dec. 49 (1854); Ohio v. Beam, 3 Ohio St. 308 (1854); Smith v. Hood, 25 Pa. St. 218, 64 Am. Dec. 692 (1855); Emery v. Whitwell, 6 Mich. 474 (1859); Burson v. Blair, 12 Ind. 371 (1859); State v. Dowd, 43 N. H. 454 (1862); Doane v. Glenn, i Colo. 454 (1872); Smith v. Kennedy, 63 Ala. 334 (1879); Bean v. Ayres, 70 Maine 421 (1879); Ecker v. Bank, 64 Md. 292, I Atl. 849 (1885); Law v. Kennedy, 2 Walk. (Pa.) 497 (1876); Wiggin v. Superior Court, 68 Cal. 398, 9 Pac. 646 (1886); Cohn v. Scheuer, 115 Pa. St. 178, 8 Atl, 421 (1886); Bohlen v. Metropolitan &c. R. Co., 121 N. Y. 546, 24 N. E. 932 (1890); Hatton v. Harris, L. R. (1892) App. Cas. 547; Hogue v. Corbit, 156 Ill. 540, 41 N. E. 219, 47 Am. St. 232 (1895); Bostwick v. Van Vleck, 106 Wis. 387, 82 N. W. 302 (1900); Stevenson v. Black, 168 Mo. 549, 68 S. W. 909 (1902); Willard's Estate, 139 Cal. 501, 73 Pac. 240, 64 L. R. A. 554 (1903); West Chicago Park Comrs. v. Boal, 232 III. 248, 83 N. E. 824 (1908); Kreisel v. Snavery, 135 Mo. App. 155, 115 S. W. 1059 (1908); Gage v. Weineck, 148 Ill. App. 140 (1909); Keech Co. v. O'Herron, 41 Pa. Super. Ct. 108 (1909); Brown v. Clark, 81 Conn. 562, 71 Atl. 727 (1909); Strodi v. Stafford Co., 65 Misc. 625, 121 N. Y. S. 93 (1910); Clark v. Scovill, 198 N. Y. 279, 91 N. E. 800 (1910); Schloss v. Lennon, 123 Minn. 420, 144 N. W. 148 (1913); Green v. Commonwealth, 152 Ky. 239, 153 S. W. 242 (1913).

SECTION 5. OPENING AND VACATING JUDGMENTS

DEERING v. QUIVEY

SUPREME COURT OF OREGON, 1895

26 Ore. 556

This is an action by William Deering & Company against the partnership of Creighton & Quivey, and comes here on appeal from an order of the Circuit Court of Benton County vacating a judgment of that court, and permitting the defendants to file an answer. The transcript shows that a demurrer to the complaint having been overruled, the defendants refused to further plead or answer, and judgment was on April 14, 1892, rendered against them. It also appears from the affidavit of their attorney, filed on November 25th of that year, that they had a valid and meritorious defense to the action, but, believing that said demurrer constituted a legal defense, suffered judgment to be rendered against them, intending to test the issue of the law raised thereby upon appeal to this court; and that he, for such purpose, in proper time, prepared a notice of appeal, and took it to the office of the sheriff of the said county for service, but finding said officer absent therefrom, left it with the deputy clerk, who promised to deliver it to the sheriff upon his return. Believing said notice had been served, the appeal was otherwise perfected, and the transcript filed in this court. The cause was set for hearing, and he prepared a brief therefor, but did not discover that said notice had not been served until after November 23d, which was too late to take an appeal. He also filed with said affidavit copies of said notice, and the undertaking on appeal, and tendered an answer duly verified by the defendants, and moved the court to set aside and vacate said judgment, and permit said answer to be filed. This motion was on June 5, 1893, granted, and an order made by the court vacating said judgment, and permitting said answer to be filed, from which order and judgment the plaintiffs appeal.72

MOORE, J.: The statute provides that the court "may, in its discretion, and upon such terms as may be just, at any time within one year after notice thereof, relieve a party from a judgment taken against him through his mistake, inadvertence, surprise, or excusable neglect." Hill's Code, section 102. It can not be successfully contended that there was any mistake, inadvertence, surprise, or excusable neglect on the part of the defendants when they elected to rely upon their demurrer to the complaint, and suffered judgment to be rendered against them for want of answer. "A motion or proceeding," says Mr. Black in his work on judgments, section 330, "to vacate or set aside a judgment can not be sustained on any

"Part of the opinion of the court is omitted.

DEERING V. QUIVEY

541 grounds which might have been pleaded in defense to the action, and could have been so pleaded with proper care and diligence." Relief will not be granted when a party has knowingly acquiesced in the judgment complained of, or has been guilty of laches and unreasonable delay in seeking his remedy. Craig v. Worth, 47 Md. 281; Elder v. Bank of Lawrence, 12 Kans. 242. The defendants had an opportunity to plead to the complaint, but they voluntarily declined. to do so, and consented to and knowingly acquiesced in the judgment which was rendered. The liberal provisions of the statute above quoted are intended for the benefit of those who, by reason of any of the causes there assigned, have not had their day in court. The defendants, having had this right, can not claim any relief under that section of the statute.

The remedy, if there is any in this case, must be based upon the inherent right of every court of record to correct, modify, or vacate its judgments and decrees. This right, however, exists only while the proceedings of the court remain in the breast of the judges, or during the term at which the judgment or decrees was rendered; and at the close of such term all final proceedings had therein become conclusive, and the court loses jurisdiction of them. Freeman on Judgments (3d ed.), section 69. "When a final judgment,' says Pleasants, J., in Brewster v. Norfleet (Texas Civ. App.), 22 S. W. 226, "has been rendered in a cause, and the term of the court has expired, the jurisdiction of the court over the subject matter of litigation is gone; and the court has no power to set aside the judgment, and to hear the case anew, for the purpose of correcting errors committed upon the former trial." This was the rule of the common law and, unless modified by statute, still prevails in most of the courts.73

Reversed.

"It is generally held that in the absence of statutory authority, a court has no power to open, vacate or set aside a final judgment obtained adversely, after the expiration of the term at which such judgment was rendered. Cameron v. McRoberts, 3 Wheat. (U. S.) 591, 4 L. ed. 467 (1818); Lampsett v. Whitney, 4 Ill. 170 (1841); Slatter v. Glover, 14 Ala. 648, 48 Am. Dec. 118 (1848); Blair v. Russell, 1 Ind. 516 (1849); Cook v. Wood, 24 Ill. 295 (1860); Spafford v. Janesville, 15 Wis. 474 (1862); Lattimer v. Ryan, 20 Cal. 628 (1862); Hall v. Paine, 47 Conn. 429 (1880); Donnell v. Hamilton, 77 Ala. 610 (1884); Gilbert Arnold Land Co. v. O'Hare, 93 Wis. 194, 67 N. W. 38 (1896); Jones v. New York Life Ins. Co., 14 Utah 215, 47 Pac. 74 (1896); Hill v. Egan, 39 W. N. C. (Pa.) 267 (1896); Schmidt v. Rehwinkel, 86 Ill. App. 267 (1899); Dean v. Munhall, 11 Pa. Super. Ct. 69 (1899); Chicago v. Nicholes, 192 Ill. 489, 61 N. E. 434 (1901); Turner v. Davis, 132 N. Car. 187, 43 S. E. 637 (1903); People v. District Court, 33 Colo. 405, 80 Pac. 1065 (1905); Curtiss v. Bell, 131 Mo. 245, 111 S. W. 131 (1908); Ayres v. Anderson Tully Co., 89 Ark. 160, 116 S. W. 199 (1909); McCready v. Gaus, 242 Pa. 364, 89 Atl. 459 (1913); Tryon v. Pennsylvania R. Co., 213 Fed. 49 (1914).

In a number of states statutes provide that the courts may within a prescribed time (frequently a year) relieve a party from a judgment or order taken against him through his mistake, inadvertence, surprise or excusable neglect. New York Code Civ. Proc., § 724; California Code Civ. Proc., § 473; Ohio Gen. Code (1910), § 11631. A party seeking relief under such statutes must show good and sufficient reasons for failing to defend at the proper time. Cowton v. Anderson, 1 How. Prac. (N. Y.) 145 (1845); Milwaukee Mut. Loan &c. Soc. v. Jagodzinski, 84 Wis. 35, 54 N. W. 102 (1893); Mitchell v. Allen,

ANONYMOUS

SUPREME COURT OF NEW YORK, 1826

6 Cow. (N. Y.) 390

J. A. Collier, for the defendant, moved to set aside a default for want of a plea, on the ground of merits.

H. P. Hunt, contra, read an affidavit showing that by reason of the defendant's doubtful circumstances, the plaintiff would be in danger of losing his debt, unless the judgment was suffered to stand as security.

Curia. Let the defendant plead and go to trial on payment of costs; the judgment to remain as security.

Collier. Do the court mean the cost of resisting the motion merely, or the costs of the default and subsequent proceedings also? Curia. Both must be paid. The plaintiff is entitled to them as a

110 Ga. 282, 34 S. E. 851 (1899). In New York it is held that the court has power, independently of the statutes, to set aside judgments improperly obtained; the only limitation is that the motion must be within one year. Weston v. Citizens' Nat. Bk., 88 App. Div. 330, 84 N. Y. S. 743 (1903); Clark v. Scovill, 198 N. Y. 279, 91 N. E. 800 (1910).

The principle has been applied to mistakes of fact. Cannon v. Reynolds, 5 El. & Bl. 301 (1855); Capen v. Stoughton, 82 Mass. 364 (1860); Mead v. Norris, 21 Wis. 310 (1867); Kimball v. Kelton, 54 Vt. 177 (1881); Babcock v. Day, 104 Pa. St. 4 (1883); Keith v. McCaffrey, 145 Mass. 18, 12 N. E. 419 (1887); Sargent v. Kindred, 5 N. Dak. 8, 63 N. W. 151 (1905); Wright v. Krabbenhoft, 104 Minn. 460, 116 N. W. 940 (1908); Lithuanian Soc. v. Tunila, So Conn. 642, 70 Atl. 25 (1908); Hilt v. Heimberger, 235 Ill. 235, 85 N. E. 304 (1908). Compare Clemons v. Field, 99 N. Car. 400, 6 S. E. 790, 6 Am. St. 529 (1888); Lowe v. Hamilton, 132 Ind. 406, 31 N. E. 1117 (1892); Devlin v. Boyd, 69 Hun 328, 23 N. Y. S. 523, 53 N. Y. St. 247 (1893). Also to accident and neglect excusable under the circumstances. Sage v. Matheny, 14 Ind. 369 (1860); Atwood v. Chichester, 3 Q. B. Div. 722 (1878); Davis Estate, 15 Mont. 347, 39 Pac. 292 (1894); Grady v. Donahoo, 108 Cal. 211, 41 Pac. 41 (1895); Thompson v. Connell, 31 Ore. 231, 48 Pac. 467, 65 Am. St. 818 (1897); Ennis v. Fourth Nat. Bk., 102 Iowa 520, 71 N. W. 426 (1897); Queal v. Bulen, 89 Minn. 477, 95 N. W. 310 (1903); Boyd v. Williams, 70 N. J. L. 185, 56 Atl. 135 (1903); Capital Fire Ins. Co. v. Davis, 85 Ark. 385, 108 S. W. 202 (1908); Lichter v. Seitzman, 121 N. Y. S. 609 (1910); Robinson v. Carmichael, 134 Ga. 654, 68 S. E. 582 (1910). Compare, where the excuses were insufficient, Shaffer v. Sutton, 49 Ill. 506 (1869); Prager v. Beardsley, 133 App. Div. 592, 118 N. Y. S. 232 (1909); Kachel v. Stutz, 137 App. Div. 199, 121 N. Y. S. 979 (1910); Gainsville v. Johnson, 59 Fla. 459, 51 So. 852 (1910); Gurske v. Britt, 86 Nebr. 312, 125 N. W. 539 (1910).

As to negligence of counsel see 17 A. & E. Encyc. of Law (2d ed.) 833 and compare Kreite v. Kreite, 93 Ind. 583 (1883); Butler v. Morse, 66 N. H. 429 23 Atl. 90 (1891); Amherst College v. Allen, 165 Mass. 178, 42 N. E. 570 (1896); Saupp v. Flanigan, 7 Pa. Dist. R. 604 (1898); Morris v. Wofford, 114 Ga. 935, 41 S. E. 56 (1902); Eggleston v. Royal T. Co., 205 Ill. 170, 68 N. E. 709 (1903); Alferitz v. Cahen, 145 Cal. 397, 78 Pac. 878 (1904); Barlow v. Burns, 70 N. J. L. 631, 57 Atl. 262 (1904); Fisher v. Henning (Tex. Civ. App.), 164 S. W. 913 (1914), with Philips v. Hawley, 6 Johns. (N. Y.) 129 (1810); Sharp v. New York, 31 Barb. 578 (1860); Densereau v. Salliant, 22 R. I. 500, 48 Atl. 668 (1901); Brand v. Baker, 42 Ore. 426, 71 Pac. 320 (1903); Lenz v. Rowe, 66 N. J. L. 131, 48 Atl. 525 (1901); Van Cott v. Webb-Miller, 25 Pa. Super. Ct. 51 (1904).